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Senior lawyers join calls for changes to Tories’ terror bill

OTTAWA—Eight senior lawyers who are security-cleared to challenge classified evidence in closed-court terrorism cases have added their voices to a chorus calling for changes to the government’s anti-terror bill.

Their call for amendments comes as the Assembly of First Nations vowed Thursday that aboriginal groups will launch a constitutional court challenge to strike down the law once passed and even witnesses friendly to the Conservative bill demanded more oversight.

AFN National Chief Perry Bellegarde said the government breached its constitutional duty to consult with First Nations on a bill that he says would classify aboriginal people as threats to national security and “terrorists.” (Justin Tang / THE CANADIAN PRESS file photo)

The eight lawyers have first-hand knowledge of CSIS’ activities in national security cases; all are “special advocates” on a roster approved by the federal justice department, and are appointed by Canadian courts to ensure top secret evidence is properly tested when Ottawa seeks to deport terror suspects. They count among their ranks two commission lawyers who advised the Air India and the Maher Arar judicial inquiries.

In a three-page brief to the public safety committee, obtained by the Star, the special advocates challenge the Conservative government’s claim that it has built in judicial “oversight” for new spying and threat disruption powers extended to CSIS.

The proposed new role for judges to approve “disruption warrants” when CSIS proposes to break the law or breach constitutional rights during intelligence investigations is wrongheaded, they say.

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“This is a radical change in the role of Canadian judges, who do not now and have never had a mandate to order violations of Charter rights,” they wrote. “The proposed ‘front-end’ judicial sanctioning of illegal and unconstitutional conduct by CSIS is an inappropriate role for our judges.”

They suggested an amendment to allow a special advocate to play a role in the regime “to represent the interests of the persons whose Charter and legal rights might be affected.” And they raise concern about “significant new restrictions” on access to government information that could disprove Ottawa’s claims in security certificate (immigration deportation) cases.

The submission was made on behalf of lawyers Gordon Cameron, Paul Cavalluzzo, Paul Copeland, Denis Couture, François Dadour, Anil Kapoor, John Norris and Lorne Waldman. The Conservative-dominated committee denied their request to testify.

Yet their concerns were shared by Ron Atkey, a former chairman of SIRC — the Security Intelligence Review Committee which is the watchdog agency for CSIS, who did testify. A former Progressive Conservative MP, Atkey said the disruption warrant scheme “is clearly unconstitutional and it will be struck down by the courts.”

Atkey called it a “constitutional mess” that could not be fixed by re-drafting, and supported the creation of parliamentary oversight for national security activities.

AFN National Chief Perry Bellegarde said the government breached its constitutional duty to consult with First Nations on a bill that he says would classify aboriginal people as threats to national security and “terrorists.”

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“First Nations people are often forced to take a stand against actions or initiatives by governments that refuse to respect or protect our rights. These activities are often deemed ‘protests’ when in fact we are only calling on Canada to obey its own laws,” treaties and Constitution, he said.

The British Columbia Civil Liberties Association, the International Civil Liberties Monitoring Group and Greenpeace criticized the broader exchange of data among 17 agencies and departments, the new CSIS powers, and expansions to the no-fly list “with no statutory limitations on how that information can be used by a foreign state,” as BCCLA lawyer Carmen Cheung said.

Human rights lawyer Paul Champ for the ICLM group warned that careless information-sharing led to a five-year ordeal for an Algerian refugee whom the Canadian government shipped over the border after 9/11. Ottawa just settled a lawsuit last week over the mistake.

Even Barry Cooper, a conservative-minded University of Calgary political science professor who supports the general thrust of the bill, called for better review of all the agencies and departments whose powers would be boosted under C-51. He said the bill begins to develop a “whole of government” approach to confronting a new terror threat, but requires a “whole of government” regime to providing better review of all the agencies and departments empowered under it.

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